- (1.) THIS appeal is directed against the judgment dated 7.2.1999 passed in C.C.No.10 of 1996 on the file of Special Judge for ACB Cases, Visakhapatnam, whereby and whereunder, the learned Special Judge found A-1-Pillalamarri Venugopala Krishna Murthy and A-2-Kalivarapu Rama Rao guilty for the offences under Sections 7 and 13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988 (for short, 'the Act') and convicted them accordingly and sentenced A-1 to suffer simple imprisonment for one year and fine of Rs.1500/- and in default simple imprisonment for one month for the offence under Section 7 of the Act and simple imprisonment for one year and fine of Rs.1500/- in default simple imprisonment for one month for the offence under Section 13(1)(d) r/w.13(2) of the Act and sentenced A-2 to suffer simple imprisonment for one year and fine of Rs. 500/- in default simple imprisonment for one month for the offence under Section 7 of the Act and simple imprisonment for one year and fine of Rs. 500/- in default simple imprisonment for one month for the offence under Section 13(1)(d) r/w.13(2) of the Act. Both the substantive sentences were directed to run concurrently.
(2.) THE prosecution case, in brief, is:- L.W.6 Uppalapati Durga Prasad, a resident of Vijayawada, is a Contractor and he is a friend of PW-1-Durga Murali. He became the highest bidder for collection of tax of toll-gate at Madapam of Visakhapatnam-Bhuvaneswar Division for the year 1994-95. THE Executive Engineer executed a lease deed in his favour on 26.3.1994. P.W.1 is Power of Attorney holder of Durga Prasad in respect of collection of tax of toll-gate at Madapam. Ex.P-1 is the lease deed dated 26.3.1994, Ex.P-2 is the photostat copy of the power of attorney dated 24.2.1994. After expiry of the lease period, no auction was conducted for the year 1995-96. THErefore, the department asked Uppalapati Durga Prasad to continue collection of tax of toll-gate on payment of 10% excess over the lease amount. PW-1 as power of attorney holder of the said Durga Prasad paid the lease amounts in advance for the first fifteen days and the next ten days by way of two demand drafts, one for Rs. 52,030/-, dated 15.4.1995 and another for Rs. 2,08,120/- dated 17.4.1995. Ex.P-3 is a bunch comprising a draft dt.15.4.1995 for Rs. 52,030/- and a Photostat copy of demand draft dated 17.4.1995 for Rs. 2,08,120/-. In the meanwhile, the department conducted auction on 16.04.1995 for the year 1995-96 and handed over the bridge to the highest bidder on 20.4.1995. In view of the right to collect tax of toll-gate being entrusted to a new lessee, Uppalapati Durga Prasad was to get return of the excess amount of Rs.1,47,400/- paid by him in advance. PW-1 as General Power of Attorney holder of LW.6 Uppalapati Durga Prasad approached the department for return of the excess amount. A-1 Pillalamarri Venugopala Krishna Murthy was the Divisional Accounts Officer from 8.8.1991 to 12.06.1995, and A-2 Kalivarapu Rama Rao was Senior Assistant from 1.7.1990 to 9.5.1995 in the office of the Executive Engineer, Roads and Buildings, N.H.Division, Srikakulam District. THEy asked PW.1 to get demand draft for Rs. 60,702/- to take back D.D for Rs. 2,08,120/-. Accordingly, PW.1 obtained a demand draft for Rs. 60,702/- on 21.4.1995, which has been exhibited as Ex.P-4. A-1 demanded Rs. 1500/- and whereas A-2 demanded Rs. 500/- as bribe for return of the D.D. PW.1 made up his mind not to pay bribe as demanded by A-1 and A-2. He along with his friend PW.2 Peediraju went to the office of ACB and submitted Ex.P-5 report before the Deputy Superintendent of Police, ACB, Vizianagaram Range, who was camping at Srikakulam on 27.04.1995. PW.5-K.P.Eswar, Dy. S.P, ACB, received Ex.P-5 report and instructed PW.1 to come on the next day to R and B Guest House, Srikakulam with the proposed bribe amount. He registered a case in Crime No.5/RC-ACB/VZM/95 against A-1 and A-2 and issued Ex.P-12 F.I.R. (b) . On 28.4.1995, PW.1 along with PW.2 appeared before PW.5 with the proposed bribe amount of Rs. 2,000/- PW.5 introduced the mediators, namely K.Ravi Kumar (PW.3) and Hari Babu (LW.3) and vice versa. PW.5 handed over copy of F.I.R-Ex.P-7 to both the mediators and asked them to verify the genuineness of the contents therein from PW.1. THE mediators attested Ex.P-7 copy of F.I.R. PW.5 enquired PW.1 as to whether he brought the proposed bribe amount. THEreupon, PW.1 produced the proposed bribe amount of Rs. 2000/-. THE particulars of the currency notes of the bribe amount came to be verified by the mediators. A pre-trap panchanama came to be drafted by PW.3, which has been exhibited as Ex.P-8. THE significance of the phenolphthalein test was explained to the mediators by PW.5. PC 1285 Narayana Rao demonstrated the phenolphthalein test. Bribe amount was smeared with phenolphthalein powder. THE tainted currency of Rs. 1500/- was kept in left side shirt pocket and whereas the tainted currency of Rs. 500/- was kept in the right side pocket of PW.1. PW.5 instructed PW.1 to proceed to the office of the accused and pay the tainted amount on being demanded by the accused. After payment of the tainted amount, he was asked to give a pre-arranged signal. (c) PW-1 accompanied by PW.2 reached the office of the accused. First they met A-2, who was in the ground floor of the office. A-2 asked Pw.1 about the application as well as demand draft for Rs. 60,702/- and the bribe amount. PW.1 showed Ex.P-4 demand draft and Ex.P-6 application. He also informed A2 that he brought the bribe amount. A-2 took PW.1 to A-1 and informed A-1 that PW.1 brought Exs.P-4 and P-6 along with the bribe amount. A-1 asked PW.1 to pay bribe amount of Rs. 1500/-. THEreupon, PW-1 paid the tainted amount of Rs. 1500/- to A-1, who accepted the same and kept in his shirt pocket. PW.1 asked A-1 to count the same. A-1 counted the tainted amount and kept the same in his shirt pocket. A-1 directed A-2 to return D.D for Rs. 2,08,120/- after obtaining acknowledgment from Pw.1. A-2 demanded bribe amount of Rs. 500/- in the presence of A-l. PW.1 took out the tainted amount of Rs. 500/- and paid the same to A-2, who took it with his right hand and kept in his shirt pocket. He issued acknowledgment to A-2 in token of receiving the D.D for Rs. 2,08,120/-. PW.2 came out from the office and gave the pre-arranged signal by wiping his face. Within few minutes, PW.5 accompanied by his staff and mediators rushed into the office and thereupon, PW.1 showed A-1 and A-2 who accepted the tainted amount. PW.5 disclosed his identity to the accused and asked them to furnish their identity particulars. A-1 and A-2 disclosed their identity particulars. PW.5 got prepared Sodium Carbonate solution and asked A-1 to rinse his fingers in the solution and the solution turned into light pink colour. He preserved the solution in M.Os .3 and 4 bottles and sealed them properly. He seized the tainted amount from A-1, got verified the number of currency notes with the number of currency notes mentioned in the pre-trap panchanama and found the same tallied. M.O-7 is the tainted amount seized from the possession of A-1. THEreafter, PW.5 prepared Sodium Carbonate solution afresh and asked A-2 to rinse his fingers and the test proved to be positive. THEreafter, he seized the tainted amount from his possession and verified the number of currency notes with the number of currency notes mentioned in the pre-trap panchanama and found that they tallied with the numbers mentioned in the pre-trap panchanama. M.Os.5 and 6 are the sodium carbonate solution bottles. M.O-8 is the tainted currency seized from the possession of A-2. Ex.P-10 is the post-trap panchanama. M.O-9 is the shirt of A-1, M.O-11 is shirt of A-2, M.O-10 is the resultant solution of inner lines shirt pocket of A-1, M.O-12 is the resultant solution of inner line shirt pocket of A-2 and M.O-13 is cover containing sodium carbonate powder used in the post trap panchanama. After completing investigation, a charge sheet came to be presented before the Special Judge for ACB Cases at Visakhapatnam. The learned Special Judge took the charge sheet on file as C.C.No.10 of 1996 and on appearance of the accused and on furnishing copies of documents to them, the learned Special Judge examined the accused under Section 239 Cr.P.C. They pleaded not guilty and claimed to be tried. The plea of A-1 is that PW-1 tried to thrust the tainted amount in his shirt pocket and when he resisted it with his both hands, it fell on the table and in the meanwhile ACB officials came and collected the tainted amount from the table and that his fingers did not yield positive to the phenolphthalein test. The plea of A-2 is that in the last week of April, 1995, PW.1 asked him a hand loan of Rs. 500/- for purchase of petrol promising to adjust the same shortly. Thereupon, he gave hand loan of Rs. 500/- to PW.1 in the presence of an Attender and that on the date of the trap, PW.1 thrusted the tainted amount of Rs. 500/- in his shirt pocket as repayment of hand loan and that the test conducted to both his hands proved negative. It is also the common defence of the accused that PW.1 bore grudge against them, as they are responsible for collection of stamp duty and penalty by D.I.G. Registration and Stamps on Ex.P1 lease deed. To bring home the guilt of the accused, the prosecution examined five witnesses as PWs.1 to 5 and proved 20 documents as Exs.P-1 to P-20 apart from exhibiting 13 material objects as M.Os.1 to 13. On behalf of the 2nd accused, two witnesses were examined as DWs.1 and 2 and one document was marked as Ex.D-1.
(3.) THE learned Special Judge, on appreciation of the evidence brought on record and on hearing the prosecution and the accused, came to the conclusion that the prosecution is able to bring home the guilt of the accused for the offences under Sections 7 and 13(l)(d) read with 13(2) of the Act beyond reasonable doubt and convicted them accordingly and sentenced them as detailed supra, by judgment dated 7.2.2005. Hence, this criminal appeal by the appellants- accused. Heard Sri C.Padmanabha Reddy, learned Senior Counsel appearing for the appellants and learned Standing Counsel and Special Public Prosecutor for ACB appearing for the respondent/State.;